Judge Denies Mistrial Over Mention of Lie Detector Test

MICHAEL FLEEMANDecember 3, 1996

SANTA MONICA, Calif. (AP) _ The judge in the O.J. Simpson trial denied a defense request for a mistrial today, rejecting arguments that the jury should not have been told Simpson flunked a lie detector test.

The judge said he would simply give the jury hearing the wrongful death lawsuit against Simpson a special instruction on the issue.

The debate was the biggest fallout from Simpson’s 2 1/2 days on the witness stand, during which plaintiff lawyer Daniel Petrocelli asked him whether he failed the lie detector test days after the slayings of Nicole Brown Simpson and Ronald Goldman.

It came as plaintiffs prepared to call a series of Simpson friends and acquaintances to knock down Simpson’s assertions of innocence in the killings of his ex-wife and her friend.

Chief among the witnesses was to be A.C. Cowlings, Simpson’s best friend and driver of his Bronco during the slow-speed chase that followed a police decision to arrest Simpson.

Under questioning by Petrocelli, Simpson acknowledged he had been hooked up to a polygraph machine but said it was a practice run rather than a real test.

In his request today, Simpson attorney Robert Baker told Superior Court Judge Hiroshi Fujisaki the jury never should have heard about the test or the results.

``I would suggest that the court mistry this case and, unfortunately, start all over again,″ Baker said.

Petrocelli argued that Baker himself created the problem by telling jurors in his opening statement that Simpson had offered to take a polygraph test but was turned down by authorities.

Petrocelli said Baker, in legal terms, ``opened the door″ for testimony about the test Simpson took.

The judge agreed and then said, ``Mr. Baker, you slipped that in and Mr. Petrocelli took advantage of it.″

``You can have your opinion, judge, and obviously the Court of Appeal will have the last word,″ Baker shot back, alluding to the prospect of asking a higher court, the state 2nd District Court of Appeal, for a new trial.

The judge left the bench muttering. ``They certainly will.″

Fujisaki went into chambers to draft an instruction to the jury in which he proposed to tell panelists that the reason the lie detector test was brought up in court was because Baker mentioned it in opening statements.

The jury recessed last week after hearing Simpson, under questioning by plaintiffs’ lawyers, deny that he stabbed Goldman and Ms. Simpson.

The plaintiffs are mining Simpson’s former _ and current _ inner circles for witnesses who in 10 or 15 minutes on the stand can contradict specific statements Simpson made.

Cowlings, Simpson’s friend since boyhood, was expected to testify as early as this morning. Others likely to take the stand this week are Simpson’s ex-lawyer and now-estranged friend Robert Kardashian, business lawyer and friend Leroy ``Skip″ Taft, former girlfriend Paula Barbieri and several Simpson golfing partners.

If the judge limits cross-examination _ as he has done in the past _ the plaintiffs say they should be done with their case by late this week or early next week, having called some 70 witnesses in a little more than a month.

Plaintiffs are also likely to limit the testimony of Cowlings and dozens of others so as to avoid lengthy cross-examinations by Simpson’s lawyers.

Lawyers can cross-examine a witness only on information brought out during direct examination _ a rule the plaintiffs have used effectively as damage control for such earlier witnesses as criminalist Dennis Fung and ex-Detective Philip Vannatter.

The eclectic final lineup of about 30 witnesses also include a former Playboy playmate, a worker at a battered women’s shelter, and grieving relatives of the victims.

Then it will be the defense’s turn to present its case.

Simpson’s other court fight, for custody of his two youngest children, appears to be going well for him. Sources said today that a lawyer representing Sydney, 11, and Justin, 8, has recommended that Simpson receive custody.

Summations in that closed trial in Orange County are scheduled for Thursday and the judge could rule by Friday, sources said on condition of anonymity. The children are now in the custody of Ms. Simpson’s parents.

The judge, in questioning lawyers, has expressed skepticism about the claim that alleged domestic violence by Simpson makes him an unfit parent, the sources said.

Simpson, 49, was acquitted of murder in the stabbing deaths. He could be ordered to pay a damage award in the millions if he loses the wrongful death suit, although questions have arisen over how much of Simpson’s wealth remains after the costly criminal trial.